TOWARD A PROGRESSIVE LABOR ANTITRUST

For decades, antitrust enforcers ignored employer power in labor markets, adopting neoclassical assumptions that labor markets are competitive. Despite fanfare regarding recent labor antitrust enforcement, enforcers still deploy neoclassical assumptions and methods, targeting only proven deviations from a presumed competitive baseline, or infracompetitive wages and working conditions. The New Labor Antitrust deduces harms only from reduced competition that workers suffer. This Article radically challenges that approach as contrary to law and policy. First, as a legal matter, it uncovers the Clayton and Norris- LaGuardia Acts' labor and wage policy as rejecting competitively determined wages in favor of bargained-for wages determined through workers' collective self-determination. It contextualizes those Acts as Progressive and institutional economists' policy victories over neoclassical and formalist views of labor relations. Second, as a policy matter, the New Labor Antitrust's approach contradicts mounting evidence of imperfect competition that should drive new assumptions and methods of detecting and countering employer power. Market-based metrics undercount employer power and its effects, making it needlessly challenging to establish liability. And when liability is established, it may be established for only competition-based-rather than non-competitionbased-harms like reducing workers' countervailing power and freedom of association. The Article explains how the New Labor Antitrust inherited neoclassical doctrine and methods developed outside labor antitrust to usurp Congress's now-forgotten labor and wage policy. It proposes reframing labor antitrust regulation to better detect and target employer power's sources consistent with a policy favoring workers' collective selfdetermination. It offers preliminary solutions, drawing from broader federal labor policy and the social scientific and philosophical literatures.